Can a Worker Sue me if they are Exposed to COVID-19 at work?

Share on facebook
Share on twitter
Share on linkedin

Can a Worker Sue Me if They are Exposed to COVID-19 at Work?

As NSW moves to “living with COVID-19” the chances of both vaccinated and unvaccinated workers catching the virus at work is real, even with high vaccination rates and low caseloads.

What happens if your worker catches COVID-19 at work?  Can they claim on workers compensation?  Do they have any other claim against you?  Is there anything you can do to minimise the chances of claims?

Can employees claim workers compensation if infected by COVID-19 at work?

In a nutshell – yes they can.  As at 05 November 2021, approximately 1,650 workers compensation claims have been made in NSW because of COVID-19.

Essential workers are presumed to have contracted COVID-19 at work unless the employer can establish otherwise.  All other workers will need to establish they contracted COVID-19 at work and the work activities must be the main contributing factor to the worker contracting the virus.

Can employees claim workers compensation for an adverse reaction to a COVID-19 vaccination?

Workers may have a claim for adverse reactions to vaccinations where vaccinations are mandated in the workplace.  However, the Australian Government is developing a vaccination claims scheme to reimburse people who suffer a moderate to significant impact following an adverse reaction to an approved COVID-19 vaccine.

Details of the scheme are still being provided, however it appears as though it will reimburse patients for medical costs and lost wages exceeding $5,000.00 suffered from a proven adverse reaction to a COVID-19 vaccination.  So while an employee may make a workers compensation claim, it may be the case the liability will be limited to $5,000.00 depending on the interaction between the vaccine compensation scheme and the workers compensation scheme.

Are there any other claims available to employees?

Workers compensation claims are available to workers without having to prove an employer was fault.  Making a workers compensation claim does not prevent a worker from making a separate claim for damages on the basis the employer deliberately or negligently breached its duty to provide a safe workplace.  This is a developing area and while there have been reports of workers considering this, so far there does not appear to be any cases filed.

In addition, investigations by regulators such as SafeWork NSW may occur if concerns are raised about unsafe practices.  Our recent blog post raised awareness of the WorkSafe investigation into Serco following the death of Martin Blight who caught COVID-19 at work.  Charges have also been laid against the Victorian Department of Health for failing to provide and maintain, as far as reasonably practicable, a working environment that was safe and without risk to health and its employees when it was responsible for the oversight and co-ordination of Victoria’s first hotel quarantine program.

What can employees do to reduce the spread of COVID-19 in the workplace?

With so much uncertainty, employers are best advised to do whatever possible to reduce the spread of COVID-19 in the workplace.

  1. Consider whether mandatory vaccination is appropriate for the workplace.  According to the United States Centers for Disease Control and Prevention the vaccine provides protection from severe illness and reduces the likelihood of hospitalization and death.  However, some people who are fully vaccinated will still get COVID-19 and can spread COVID-19 to others.  Theoretically at least, the more workers vaccinated, the less likely a claim will be made.
  2. Ensure the workplace has proper ventilation.  Natural ventilation such as opening windows where possible and safe to do so, or otherwise increasing the percentage of outdoor air and total airflow supply to occupied spaces via mechanical systems.  The World Health Organisation’s ventilation roadmap is an important resource to ensure good indoor ventilation in the context of COVID-19.
  3. Introduce measures to keep a safe distance under health regulations between all people by regulating entrance to non-workers, discouraging direct physical contact with other persons and social gatherings, enforcing strict control over external access, implementing queue management through marking on the floor, scheduling queue times, implementing physical barriers and decreasing workspace density.  Minimise the need for physical meetings by encouraging teleconferences. Stagger workplace entrance and exit times to avoid crowding. 
  4. Implement conveniently located handwashing stations or hand sanitizing stations at all entrances, bathrooms, workstations and dining facilities.  Place signage to remind workers of proper hand hygiene and institute a system to monitor compliance.
  5. Cleaning and disinfection.  High traffic and high touch surfaces should be identified for cleaning and disinfection multiple times daily.
  6. Personal protective equipment – Employers have a responsibility to provide at no cost
    suitable and sufficient personal protective equipment, conduct training and monitor safe use amongst its workers.  Employees should retrain staff on proper use of protective equipment monthly.

All workplaces should make COVID-19 information from health agencies readily available to their workforce.  Employers should be stringent with processes and record keeping to evidence they are providing a safe workplace.

How can Foursquare Legal help?

  1. Advise on whether your workforce should be vaccinated;
  2. Provide a risk assessment on COVID-19 in your workplace;
  3. Assist with preparing policies, procedures and updating employment contracts to include COVID-19 provisions.

Book a free 15 minute consultation with us to discuss your requirements here.

The information in this article is general in nature and does not constitute legal advice.  For advice on whether you are exposed to a claim if your workers contract COVID-19 at work please get in touch with us.

Book your free consultation with Sally